Plaintiff
R. Danny Huntington has been on a quest to uncover everything
he can about a confidential U.S. Patent and Trademark Office
program called the Sensitive Application Warning System
(SAWS). The program, which the USPTO recently abandoned, was
used to flag certain patent applications involving
particularly sensitive subject matter. Seeking to learn more
about SAWS, Plaintiff filed multiple Freedom of Information
Act requests with the USPTO, a component of Defendant U.S.
Department of Commerce. After a search and the production of
some, but not all, relevant documents, Huntington brought
this suit.

In the
second of two prior Opinions, this Court ordered Defendant to
resolve one remaining area of deficiency in its search.
Commerce has now filed a Second Renewed Motion for Summary
Judgment claiming that it has adequately done so. The Court
agrees; as it finds that the USPTO has satisfied FOIA's
dictates, it will grant summary judgment in Defendant's
favor. Having successfully obtained another 67 pages of
records in this round, Plaintiff's expedition - at least
via this lawsuit - is finally finished.

I.
Background

The
Court's first Opinion in this matter lays out the full
details of the controversy, see Huntington v. U.S.
Dep't of Commerce (Huntington I), 234
F.Supp.3d 94, 98-100 (D.D.C. 2017), so they are only briefly
summarized here.

In
1994, the USPTO implemented the SAWS program “to allow
patent examiners to alert leadership when a patent might
issue on a sensitive matter.” See ECF No. 14-4
(Declaration of John Ricou Heaton), ¶ 21. This alert
triggered an internal quality-assurance check, see
ECF No. 18-1 (Supplemental Declaration of John Ricou Heaton),
¶ 22, which could affect whether an application was
ultimately granted or denied. See Heaton Decl.,
¶ 9. If the patent was issued, then a SAWS report -
describing the invention and its sensitive nature - would be
generated and, depending on the issue, sent up the chain of
command. Id. SAWS reports were also sent to the
Patent Trial and Appeal Board (PTAB) as part of the appeals
process. See Huntington I, 234 F.Supp.3d at 108. The
USPTO abandoned the program in March 2015. Id.

During
the first half of 2015, Huntington submitted several FOIA
requests to the USPTO seeking records related to SAWS. After
Commerce initially released some documents, see ECF
No. 11-4, Exh. 2-2 at ¶ 002, Huntington filed multiple
unsuccessful administrative appeals, id., Exhs. 2-3,
2-4, and then brought this suit in December 2015, alleging
that Defendant had failed to both conduct an adequate search
and produce responsive records. See ECF No. 1
(Complaint), ¶¶ 34-43. In response, the USPTO
undertook “a more thorough subsequent search, ”
Heaton Decl., ¶ 23, and released 4, 114 pages and five
spreadsheets of material, of which one document was redacted
in full and 132 pages were redacted in part pursuant to FOIA
Exemptions 3, 5, and 6. Id., ¶ 50.

Claiming
that Defendant's search was inadequate and that certain
records were improperly withheld, Huntington moved for
partial summary judgment. See ECF No. 11 (Pl. First
MSJ). Commerce, conversely, believed it had satisfied its
FOIA obligations and thus cross-moved for summary judgment.
See ECF No. 14-2 (Def. First MSJ). Partially
granting and partially denying these motions, the Court
ordered Defendant to (1) fix the facial deficiency in its
search description, (2) describe its search in further
detail, and (3) search the PTAB Chief Judges' records.
Huntington I, 234 F.Supp.3d at 104-05, 108-09. The
Court, however, upheld all of Defendant's withholdings.
Id. at 110. In response, the USPTO cured the facial
deficiency, explained in more detail the search of various
offices, and searched the PTAB Chief Judges' records -
releasing an additional 25 pages of documents, of which four
documents were redacted in part. See ECF No. 22-2
(Second Supplemental Declaration of John Ricou Heaton),
¶ 8.

Contending
that it had carried out the Court's Order and thus fully
complied with FOIA, Defendant renewed its summary-judgment
motion. See ECF No. 22 (Def. Second MSJ). Believing
that Defendant's search was still inadequate and that
certain records continued to be improperly withheld,
Plaintiff renewed his Cross-Motion as well. See ECF
No. 23-1 (Pl. Second MSJ). Once again, the Court partially
granted and partially denied both motions. See Huntington
v. U.S. Dep't of Commerce (Huntington II),
266 F.Supp.3d 264 (D.D.C. 2017). The Court found that the
USPTO had generally satisfied its Order but that its search
remained wanting inasmuch as it had failed to search the
files of PTAB Administrative Patent Judges (APJs) in addition
to those of Chief Judges. See id. at 274-75.

The
Court thus ordered Defendant to either: (1) submit an
additional declaration describing in detail the search of
certain APJs' records and a sufficient explanation of why
more APJs' files were not searched, or (2) search all
APJs' SAWS-related records and provide a description
thereof. Id. at 275. In response, the USPTO selected
door number two, as will be detailed below. Maintaining that
it has now carried out the Court's Order and thus fully
complied with FOIA, Defendant files yet another Motion for
Summary Judgment. See ECF No. 32 (Def. Second
Renewed MSJ). Rejoining that Defendant's search remains
inadequate, Huntington renews his Cross-Motion as well.
See ECF No. 33 (Pl. Second Renewed MSJ). Both are
now ripe.

II.
Legal Standard

Summary
judgment may be granted if “the movant shows that there
is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). A fact is “material” if it is
capable of affecting the substantive outcome of the
litigation. See Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). A dispute is “genuine” if
the evidence is such that a reasonable jury could return a
verdict for the nonmoving party. See Scott v.
Harris, 550 U.S. 372, 380 (2007); Liberty
Lobby, 477 U.S. at 248. “A party asserting that a
fact cannot be or is genuinely disputed must support the
assertion” by “citing to particular parts of
materials in the record” or “showing that the
materials cited do not establish the absence or presence of a
genuine dispute, or that an adverse party cannot produce
admissible evidence to support the fact.” Fed.R.Civ.P.
56(c)(1). The moving party bears the burden of demonstrating
the absence of a genuine issue of material fact. See
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In
the event of conflicting evidence on a material issue, the
Court is to construe the conflicting evidence in the light
most favorable to the non-moving party. See Sample v.
Bureau of Prisons, 466 F.3d 1086, 1087 (D.C. Cir. 2006).

FOIA
cases typically and appropriately are decided on motions for
summary judgment. See Brayton v. Office of U.S. Trade
Rep., 641 F.3d 521, 527 (D.C. Cir. 2011). In a FOIA
case, a court may grant summary judgment based solely on
information provided in an agency's affidavits or
declarations when they “describe the justifications for
nondisclosure with reasonably specific detail, demonstrate
that the information withheld logically falls within the
claimed exemption, and are not controverted by either
contrary evidence in the record nor by evidence of agency bad
faith.” Larson v. Dep't of State, 565 F.3d
857, 862 (D.C. Cir. 2009) (citation omitted). “Unlike
the review of other agency action that must be upheld if
supported by substantial evidence and not arbitrary or
capricious, the FOIA expressly places the burden ‘on
the agency to sustain its action' and directs the
district courts to ‘determine the matter de
novo.'” DOJ v. Reporters Comm. for Freedom
of the Press, 489 U.S. 749, 755 (1989) (quoting 5 U.S.C.
§ 552(a)(4)(B)).

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;III.
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